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Employment Tribunal not bound by list of issues that miscategorises claim

In the recent case of Saha v Capita plc the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) is not compelled to rely on a list of issues that wrongly categorises the claim to be heard.

The Claimant was employed as an assistant management accountant. In an email she alleged that the Respondent subjected her to a detriment by asking her to work the year-end hours proposed as they were:

  • detrimental to her health and safety; and
  • in breach of the Working Time Regulations 1998 (WTR).

Following the email, the Claimant received an offer to terminate her employment in return for a payment of £10,000. She then lodged a claim with the ET pleading both of the above matters as protected disclosures.

An agreed list of issues was prepared at the outset of the hearing but categorised the WTR allegation as a working time detriment claim rather than detriment on the ground of making a protected disclosure. The EAT held that the ET failed to consider the substance of the claim.

The EAT relied on the Court of Appeal case of Parekh v London Borough of Brent [2012] which made clear that an ET is not bound by the list of issues agreed and the core duty of the court is to hear and determine the case in accordance with the law and evidence. The claim was remitted to the same ET to decide whether the email contained a protected disclosure of a likely breach of the WTR.

This decision is a reminder that an agreed list of issues is not set in stone. If a list of issues is wrongly categorised then it is the duty of the ET to determine the case in accordance with the law and evidence.

Employment Tribunal not bound by list of issues that miscategorises claim

Non-executive directors can be liable for a detriment suffered by a whistleblower

In the recent case of Timis and another v. Osipov, the Court of Appeal confirmed that an individual employee, along with the employer, can be held liable for the detriment of dismissal arising from making a protected disclosure (commonly known as whistleblowing).

Facts

Mr Osipov was the CEO of International Petroleum Ltd (IP Ltd). During his time as CEO he made a number of disclosures related to corporate governance and compliance with Nigerien law. He was subject to detriment and then dismissed by two non-executive directors of IP Ltd, Mr Sage (a non-executive director with managerial functions) and Mr Timis (a non-executive director and the company’s largest individual shareholder). Mr Sage acted on instructions from Mr Timis when dismissing Mr Osipov.

Mr Osipov brought a claim to the Employment Tribunal alleging that he had been unfairly dismissed and subjected to detriment for having made protected disclosures. He succeeded with both claims and Mr Sage and Mr Timis were held jointly and severally liable for his losses amounting to over £1.7 million. IP Ltd and both directors appealed the decision to the Employment Appeal Tribunal (EAT). The directors’ appeal was based on the fact that they should not be liable for the losses flowing from the dismissal. They were unsuccessful and subsequently appealed the EAT decision to the Court of Appeal.

Decision

The Court of Appeal has agreed with the previous decisions of the tribunals and backed the original award made to Mr Osipov. In making the decision the court considered whether an individual worker can be held liable for a detriment which takes the form of dismissal on the ground of making a protected disclosure despite the provisions of the Employment Rights Act (ERA), which excludes a detriment claim if the detriment “amounts to dismissal itself”.

The court held that there is nothing in the wording of the ERA that “excludes from individual liability detriments amounting to termination of the working relationship”. In other words, there is no reason for fellow workers to be relieved of liability if they subject another worker to a detriment which results in a dismissal.

Comment

This decision has far-reaching consequences. It confirms that individual employees can be liable for their actions towards whistleblowers. In practice this may result in a new trend, where the whistleblowing claims are brought against both the employer (unfair dismissal claim) and the individual who decided to dismiss the employee (detriment claim). It is paramount therefore that, in mitigating the risk of such claims, employers are prepared to provide adequate training to the managers and directors investigating and making decisions relating to protected disclosures and that they have clear whistleblowing policies in place to ensure that the appropriate procedures are followed.

Non-executive directors can be liable for a detriment suffered by a whistleblower

Kilraine v London Borough of Wandsworth [2018]

A recent case has considered the issue of what amounts to a protected disclosure. In Kilraine v. London Borough of Wandsworth [2018], the Court of Appeal guided Employment Tribunals in such cases to focus on determining whether there was a "protected disclosure" and whether the disclosed information, showed or tended to show that one or more of the six specified types of malpractice had taken place or was likely to take place – for example a breach of a legal obligation.
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Kilraine v London Borough of Wandsworth [2018]

Insight: UK Employment Law Round-up – August 2016

Employment Round Up THUMBNAIL In this month’s issue we consider the case of Dronsfield v. University of Reading, in particular the EAT’s observations in that case about how disciplinary investigations should be conducted and the role of HR in finalising investigatory reports and disciplinary decisions.

We also look at a recent case on the definition of “worker” for whistleblowing purposes, which established that, in some circumstances, a “worker/employer” relationship may be established between an agency worker and an end user.

We consider the “cautionary tale” of Byron Burger on how not to assist in a Home Office investigation, with a brief reminder of the risk of not carrying out appropriate “right to work” checks.

Finally, we consider what’s next for UK employment law – not just in the context of Brexit, but also in terms of the pledges and agendas our political leaders have set out.

Read the full newsletter here.

Insight: UK Employment Law Round-up – August 2016

Insight: UK Employment Law Round-up – May 2016

During our Annual Update seminar on 27 April 2016, we discussed some of the legislative changes that employers should look out for over the next 12 months. One of these was the Trade Union Bill having now received Royal Assent.

UK Employment Newsletter 3DCoverIn this issue we also look at the EU’s Trade Secrets Directive and how this could impact on whistleblowers in the UK, as well as the Government’s call for evidence on the use of non-compete clauses.

We will also analyse cases which look at whether employees have a right to privacy in the workplace regarding email communications, whether terms contained in an employee handbook can be incorporated within an employee’s contract of employment and how tribunals should approach the remedy of re-engagement.

Read the full newsletter here.

Insight: UK Employment Law Round-up – May 2016

Insight: UK Employment Law Round-up – April 2016

29280_Employment-Round-Up_THUMBNAIL In this issue, we consider the requirements of recent legislative changes including the new whistleblowing regime for financial institutions and the updated employment rates/limits for 2016/2017. Hot on the heels of International Women’s Day, we also explain how the spotlight on diversity continues with the release of EHRC guidance on improving diversity at senior levels of business. Another complicated area for clients can be dealing with issues surrounding PHI schemes and we analyse a recent decision in this field.

Read the full newsletter here.

Insight: UK Employment Law Round-up – April 2016

Insight: UK Employment Law Round-up – January 2016

UK Employment Newsletter 3DCover In this edition we will be taking a look at the issues that are likely to be affecting employers in 2016, starting with a round-up of the cases to watch out for which will affect redundancy consultation processes, the extent of whistleblower protections and what might be expected of data controllers when complying with subject access requests. There are, of course, many other cases coming before the appellate courts this year which will shape the ever-changing employment law landscape in 2016.

Read the full newsletter here.

Insight: UK Employment Law Round-up – January 2016